Citation Nr: 0901032
Decision Date: 01/09/09 Archive Date: 01/14/09
DOCKET NO. 07-38 572 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to an increased rating for retained foreign
body, right paralumbar muscle at L3 level, with degenerative
disc disease, currently evaluated as 20 percent disabling.
2. Entitlement to an initial increased rating for post-
traumatic stress disorder (PTSD), currently evaluated as 30
percent disabling.
REPRESENTATION
Appellant represented by: National Association of County
Veterans Service Officers
WITNESSES AT HEARING ON APPEAL
Appellant, Appellant's wife and Appellant's daughter
ATTORNEY FOR THE BOARD
F. Yankey, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1942 to December
1945. This case comes before the Board of Veterans' Appeals
(Board) on appeal of December 2006 and May 2007 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in Newark, New Jersey.
The veteran testified at a Travel Board Hearing chaired by
the undersigned Veterans Law Judge in September 2008. A
transcript of the hearing is associated with the veteran's
claims folder. At the September 2008 hearing, the veteran
submitted, with a waiver of initial RO consideration, medical
evidence pertinent to the low back disability claim, which
has not been considered by the RO; however, because the back
disability claim is being remanded, the RO will have the
opportunity to review the newly submitted evidence before a
final decision is rendered.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The issue of an increased rating for retained foreign body,
right paralumbar muscle at L3 level, with degenerative disc
disease is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDING OF FACT
The impairment from the veteran's PTSD most nearly
approximates occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks.
CONCLUSION OF LAW
The schedular criteria for a disability rating in excess of
30 percent for PTSD have not been met. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411
(2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Legal Criteria
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4 (2008). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1
(2008).
Each disability must be considered from the point of view of
the veteran working or seeking work. 38 C.F.R. § 4.2 (2008).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
The veteran's entire history is to be considered when making
a disability determination. See generally 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board
has considered whether a "staged" rating is appropriate.
See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v.
Mansfield, 21 Vet. App. 505 (2007).
A 30 percent rating is warranted for PTSD if there is
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, or mild memory loss (such
as forgetting names, directions, recent events). 38 C.F.R. §
4.130, Diagnostic Code 9411.
A 50 percent rating is warranted for PTSD if it is productive
of occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships. 38
C.F.R. § 4.130, Diagnostic Code 9411.
A 70 percent rating is warranted for occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411.
A 100 percent evaluation is warranted for total occupational
and social impairment, due to such symptoms as: gross
impairment in thought processes or communication; persistent
delusions or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to
time or place; memory loss for names of close relatives, own
occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Codes
9411.
In assessing the evidence of record, it is important to note
that the Global Assessment of Functioning (GAF) score is
based on a scale reflecting the "psychological, social, and
occupational functioning on a hypothetical continuum of
mental health-illness." Richard v. Brown, 9 Vet. App. 266,
267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS, 4th ed. (DSM-IV) at 32).
Scores ranging from 31 to 40 reflect "Some impairment in
reality testing or communication (e.g., speech is at times
illogical, obscure, or irrelevant) or major impairment in
several areas, such as work or school, family relations,
judgment, thinking, or mood (e.g., depressed man avoids
friends, neglects family, and is unable to work; child
frequently beats up other children, is defiant at home, and
is failing at school)." Id.
A score of 41 to 50 is indicated where there are "Serious
symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) or any serious impairment in
social, occupational or school functioning (e.g., no friends,
unable to keep a job)." Id.
A score of 51-60 is appropriate where there are, "Moderate
symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) OR moderate difficulty in social,
occupational, or school functioning, (e.g., few friends,
conflicts with peers or co-workers)." Id.
A score of 61-70 is indicated when there are, "Some mild
symptoms (e.g., depressed mood and mild insomnia OR some
difficulty in social, occupational, or school functioning
(e.g., occasional truancy, or theft within the household),
but generally functioning pretty well, has some meaningful
interpersonal relationships." Id.
In accordance with 38 C.F.R. §§ 4.1, 4.2 (2007) and Schafrath
v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed
all evidence of record pertaining to the history of the
service-connected disability at issue. The Board has found
nothing in the historical record which would lead to the
conclusion that the current evidence of record is not
adequate for rating purposes. Moreover, the Board is of the
opinion that this case presents no evidentiary considerations
which would warrant an exposition of remote clinical
histories and findings pertaining to this disability.
Analysis
In a May 2007 rating decision, the RO granted the veteran
service connection for PTSD. An evaluation of 30 percent was
awarded, effective June 21, 2006. The 30 percent evaluation
was based on the results from an April 2007 VA examination
conducted in response to the veteran's claim for service
connection. The veteran has appealed this initial rating.
In the present case, the evidence shows that the social and
industrial impairment from the veteran's PTSD most nearly
approximates the occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks
contemplated by the assigned evaluation of 30 percent.
On VA examination in April 2007, the veteran reported
experiencing nightmares and bad dreams, and exhibiting
symptoms of hypervigilance, an easy startle reflex, and
depression. He also reported having a supportive social
network. The examiner characterized the veteran's symptoms
as moderate and assigned a GAF score of 55.
With his August 2007 notice of disagreement, the veteran
submitted the report from an August 2007 psychological
evaluation conducted by W.G.F., Ph.D., in support of his
claim for a higher initial rating for his service-connected
PTSD. The August 2007 report showed that the veteran
exhibited the following symptoms of PTSD: constricted affect
and tense, irritable and moderately depressed mood. The
veteran reported daily nightmares; flashbacks; intrusive
thoughts; and feelings of sadness and hopelessness. Testing
revealed moderate anxiety and depression levels. The
examiner also noted that although the veteran's judgment was
adequate, he did have suicidal ideation and at times,
homicidal thoughts towards Japanese people he would come into
contact with. The veteran also reported impairment of long
and short-term memory and the examiner noted that he was
tearful during the interview. However, the examiner also
noted that despite his symptoms, the veteran remained married
and employed. A GAF score of 53 was assigned.
In essence, the evidence shows that the veteran's PTSD has
been productive of symptoms that are listed in the 30
percent, 50 percent, and 70 and 100 percent levels. The
symptoms themselves, however, are not the determinative
factor; rather, it is the resulting social and occupational
impairment that is paramount. After examining all the
evidence, the Board concludes that the resulting social and
occupational impairment is most consistent with the
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks required for a 30 percent
evaluation, but without either the reduced reliability and
productivity required for a 50 percent rating, deficiencies
in most areas required for the 70 percent rating, or the
total occupational and social impairment required for the 100
percent rating.
In this regard, the Board notes that on examination in August
2007, the veteran reported impairment of short and long-term
memory, suicidal ideation and homicidal ideation towards
Japanese people, and the examiner noted that his mood was
tense, irritable and depressed. Furthermore, at the
September 2008 hearing, the veteran's wife testified that the
veteran had "lost it" in the past and that he had been
angry. See September 2008 Travel Board hearing transcript.
However, just four months earlier, on VA examination in April
2007, the veteran reported that he had a supportive social
network and his mental status examination was essentially
within normal limits. Furthermore, on examination in August
2007, the examiner noted that despite his psychological
symptoms, the veteran had been able to maintain his marriage
and his employment. The veteran himself denied having any
problems with co-workers or supervisors. Moreover, there is
no evidence that the veteran has ever actually attempted
suicide or committed any violent acts against another person,
including a person of Japanese descent.
In determining that a rating in excess of 30 percent is not
in order, the Board notes that the veteran has not
demonstrated flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks;
difficulty in understanding complex commands; impaired
judgment; or impaired abstract thinking.
The Board also notes that throughout the period on appeal,
the veteran has received GAF scores indicative of only
moderate impairment, and on objective examination, there was
no data suggesting that the veteran's PTSD impairment was
more than mild. The Board concludes that the evidence does
not support assignment of a rating higher than 30 percent for
PTSD for any portion of the appeal period.
Duties to Notify and to Assist Claimants
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; and (3) that the
claimant is expected to provide. Notice should be provided
to a claimant before the initial unfavorable agency of
original jurisdiction (AOJ) decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also
Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice
requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)
apply to all five elements of a "service connection" claim,
defined to include: (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date of the disability. See Dingess v. Nicholson,
19 Vet. App. 473 (2006).
The record reflects that, in March 2007, prior to the initial
adjudication of the claim, the veteran was provided with the
notice required by section 5103(a), including the specific
notice required by Dingess v. Nicholson, 19 Vet. App. 473
(2006). The Board notes that, even though the letter
requested a response within 60 days, it also expressly
notified the veteran that he had one year to submit the
requested information and/or evidence, in compliance with
38 U.S.C.A. § 5103(b) (evidence must be received by the
Secretary within one year from the date notice is sent).
Finally, the Board notes that all pertinent available records
have been obtained. In addition, the veteran has been
afforded an appropriate VA examination. Neither the veteran
nor his representative has identified any outstanding
evidence, to include medical records, which could be obtained
to substantiate the denied claim. The Board is also unaware
of any such outstanding evidence. The Board is satisfied
that any procedural errors in the development of the claim by
the originating agency were not prejudicial to the veteran.
ORDER
A rating in excess of 30 percent for PTSD is denied.
REMAND
The veteran contends that the current 20 percent evaluation
assigned for his retained foreign body, right paralumbar
muscle at L3 level, with degenerative disc disease does not
accurately reflect the severity of his condition. The Board
is of the opinion that further development is required before
the Board decides this appeal. In this regard, the Board
notes that the most recent VA examinations in connection with
the veteran's service-connected low back disability were
conducted in August 2006. Medical records from the veteran's
private physician, submitted in support of the veteran's
claim, indicate that the veteran's condition has worsened
since that time.
At the time of his August 2006 neurological and orthopedic VA
examinations, the veteran's low back disability was
manifested by symptoms such as low back pain which was
intermittent, dull, aching and aggravated by bending over.
There was minimal tenderness to palpation over the bilateral
paraspinals. The veteran also reported on examination
symptoms of painful neuropathy and sometimes sharp and dull,
electric shock-like pain and dysesthesia in the low back
region. It was also noted on neurological examination in
August 2006 that the veteran got up slowly and walked slowly,
and that vibration sense was diminished on both feet, and
Romberg's test was slightly positive. The veteran also
reported difficult walking due to his back pain. At that
time, active range of motion testing showed forward flexion
limited to 35 degrees, with pain at the end range of motion;
extension to 15 degrees; bilateral bending to 15 degrees; and
bilateral rotation to 15 degrees. Straight leg raising and
Patrick's tests were negative.
In a September 2008 statement, M.K., the veteran's private
physician indicated that the veteran's back pain has become
so disabling that he can no longer get up and walk around;
that the veteran goes from his bed, to his wheelchair, to the
recliner in his house; and that he can no longer get up and
attend to anything. M.K. also indicated that the veteran's
wife had become his primary caregiver, and that the veteran's
"percentage of disability is now well over the 20 percent
mark."
The Board also notes that during his September 2008 Travel
Board hearing, the veteran reported that due to his back
pain, he was using a wheelchair; he was usually in a sitting
or reclining position; that he was taking much longer to get
out of bed; that his wife had to assist him with hygiene and
dressing needs; and that he could not walk. The veteran's
wife also testified that due to his back pain, the veteran
needed help getting around in his wheelchair and to steady
himself, and that he had to use a walker when he wasn't in
his wheelchair. She also testified that the veteran always
had to have something to help him walk, sit down or stand due
to his back disability. The veteran's wife made similar
statements regarding the difficulties the veteran has due to
his back disability in an earlier statement. See January
2007 statement.
In light of these circumstances, the case is hereby REMANDED
to the RO or the Appeals Management Center (AMC), in
Washington, D.C., for the following actions:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited
handling is requested.)
1. Arrange for the veteran to be given a
VA examination by a physician with
appropriate expertise to determine the
current severity and manifestations of his
service-connected low back disability.
The claims folder, to include a copy of
this Remand, must be made available to and
reviewed by the examiner, and any
indicated studies should be performed. A
complete rationale should be given for all
opinions and conclusions expressed. The
examiner should also provide an opinion
concerning the impact of the service-
connected disability on the veteran's
ability to work.
All indicated studies, including
X-rays and range of motion studies
in degrees, should be performed.
In reporting the results of range of
motion testing, the examiner should
identify any objective evidence of
pain and the specific excursion(s)
of motion, if any, accompanied by
pain. To the extent possible, the
examiner should assess the degree of
severity of any pain.
Tests of joint movement against
varying resistance should be
performed. The extent of any
incoordination, weakened movement
and excess fatigability on use
should also be described by the
examiner. If feasible, the examiner
should assess the additional
functional impairment due to
weakened movement, excess
fatigability, or incoordination in
terms of the degree of additional
range of motion loss.
The examiner should also express an
opinion concerning whether there
would be additional limits on
functional ability on repeated use
or during flare-ups (if the veteran
describes flare-ups), and, to the
extent possible, provide an
assessment of the functional
impairment on repeated use or during
flare-ups. If feasible, the
examiner should assess the
additional functional impairment on
repeated use or during flare-ups in
terms of the degree of additional
range of motion loss.
The examiner should also provide an
opinion concerning the impact of the
disability on the veteran's ability
to work. The rationale for all
opinions expressed should also be
provided.
2. Readjudicate the veteran's claim. If
the benefit sought on appeal is not
granted, he and his representative should
be provided a supplemental statement of the
case and an appropriate period of time for
response. The case should then be returned
to the Board for further consideration, if
otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
Mary Gallagher
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs